Material Modifications of Building Loans
In their Financing column, Jeffrey B. Steiner and Jason R. Goldstein remind practitioners to be cautious when representing lenders that modify building loans.
July 18, 2017 at 02:02 PM
8 minute read
Even seasoned real estate finance practitioners can be stumped by New York's Lien Law, specifically Section 22, a provision that is intended to balance protections ensuring payment of available funds to materialmen and laborers with lien priority for mortgage lenders providing financing to the project. Construction lenders to a New York project may maintain lien priority for periodic loan advances over intervening liens of contractors for any portion of the loan which is advanced for hard costs and certain statutorily permitted soft costs in strict accordance with the lender's public disclosure of available loan amounts and intended uses made at the initial closing of the particular loan.
Such disclosure, known as a “Section 22 affidavit,” reveals the consideration paid for the loan and all related expenses incurred or to be incurred in connection with the loan as well as, most importantly for purposes of this article, the net sum available to the owner for the cost of the improvements. The sworn statement, which accompanies the statutorily required building loan contract, must be filed in the office of the county clerk where the property is located prior to or simultaneously with the recording of the building loan mortgage.
The public filing permits contractors to determine the amount of loan proceeds that will be made available to the owner for the cost of improvements so that the contractors can determine, prior to their engagement, whether there will be sufficient funds for them to be paid out of such loan proceeds. Lender's failure to make such filing or advance the loan in accordance with the intended uses disclosed therein could result in the lender's mortgage lien being subordinated to mechanics' and/or materialmen's lien for work or materials provided in connection with the construction of the related improvement.
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